AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "AGREEMENT") is executed as of
May 5, 1998, by and among EAGLE SURVEYS INTERNATIONAL, INC., a Texas
corporation ("EAGLE"), XXXXXXX X. XXXXXX its sole shareholder (the
"SHAREHOLDER") and OMNI ENERGY SERVICES CORP., a Louisiana corporation
("OMNI"), and the transactions contemplated hereby shall be effective for
accounting purposes as of April 1, 1998.
W I T N E S S E T H:
WHEREAS, the Board of Directors of Eagle and its Shareholder and the
Board of Directors of OMNI deem it advisable that Eagle be merged with and
into OMNI (the "MERGER") pursuant to the provisions of the Texas Business
Corporation Act (the "TBCA") and the Louisiana Business Corporation Law
(the "LBCL") and upon the terms and conditions hereinafter set forth; and
WHEREAS, Eagle is currently engaged in the geophysical survey
business, primarily in Texas (the "BUSINESS").
NOW, THEREFORE, it is agreed as follows:
ARTICLE 1
MERGER OF EAGLE INTO OMNI
SECTION 1.1 THE MERGER. At the Effective Time (as hereinafter
defined), in accordance with the terms and conditions of this Agreement and
the LBCL and TBCA, Eagle will merge with and into OMNI (the "MERGER"), the
separate corporate existence of Eagle shall cease and OMNI shall continue
as the surviving corporation (the "SURVIVING CORPORATION").
SECTION 1.2 THE CLOSING. Upon the terms and conditions set forth in
this Agreement, the closing of the transactions contemplated herein (the
"CLOSING") shall take place at the offices of Jones, Walker, Waechter,
Poitevent, Carrre & Xxxxxx, L.L.P., at First NBC Center, New
Orleans, Louisiana, commencing at 10:00 a.m. on the date hereof (the
"CLOSING DATE").
SECTION 1.3 THE EFFECTIVE TIME; EFFECT OF MERGER.
(1) The Merger shall be effective upon the filing of Articles
and Certificate of Merger, in the form attached hereto as EXHIBIT A, with
the Secretary of State of Texas and Louisiana, respectively, in accordance
with the TBCA and the LBCL (the "EFFECTIVE TIME"), which shall be filed as
soon as practicable upon the execution of this Agreement. The Merger shall
have the effects as set forth in Section 115 of the LBCL and Section 5.06
of the TBCA.
(1) DIRECTORS AND OFFICERS; ARTICLES OF INCORPORATION; BY-LAWS.
After the Effective Time and until their successors shall have been duly
elected or appointed, as the case may be, the directors and officers of
OMNI as of the Effective Time will be the directors and officers of the
Surviving Corporation. The Articles of Incorporation and By-laws of OMNI,
as in effect immediately prior to the Effective Time, shall be the Articles
of Incorporation and By-laws of the Surviving Corporation until amended in
accordance with their respective terms and the LBCL.
SECTION 1.4 CONVERSION OF EAGLE SHARES.
(1) At and as of the Effective Time, by reason of the Merger (1)
all of the issued and outstanding shares of common stock, no par value per
share, of Eagle (the "EAGLE COMMON STOCK"), shall be converted into the
right to receive the Merger Consideration (as defined below).
(1) The "Merger Consideration" shall mean (1) a cash payment of
ONE MILLION EIGHTY THOUSAND AND NO/100 DOLLARS ($1,080,000.00), (1) 53,039
shares of common stock, $0.01 par value per share of OMNI (the "OMNI COMMON
STOCK"), and (1) the Earnout amount (as defined herein).
(1) Pursuant to this Agreement, OMNI shall pay to the
Shareholder within 10 business days of the first anniversary of the Closing
Date, an amount equal to the lesser of (A) the product of (1) $15,000
multiplied by (1) the number of survey crews fully trained and capable of
performing seismic and civil survey services (either GPS or conventional)
operated by OMNI, which are employed by Eagle at the Closing Date or are
hired by OMNI after the Closing Date to operate out of its Texas office, in
either such case, so long as each such survey crew has been employed by
OMNI as employees in good standing for a minimum of three (3) months prior
to the first anniversary of the Closing Date and (B) $300,000 (the
"EARNOUT"). The Earnout will be payable, at the election of the
Shareholder, in cash or in shares of OMNI Stock, or in a combination
thereof. If the Shareholder elects to receive all or a portion of the
Earnout in OMNI Common Stock, the number of shares of OMNI Common Stock to
be delivered to Shareholder shall be determined by dividing the amount of
the Earnout, or any portion thereof elected to be paid in OMNI Common
Stock, by the average closing price per share for the five (5) trading days
prior to the first anniversary of the Closing Date, as quoted on the Nasdaq
National Market or any other exchange or market upon which the OMNI common
Stock is then listed or traded.
(d) OMNI acknowledges that under the terms of this Agreement
Shareholder has a vested interest in i) maintaining the survey crews
presently employed by Eagle, and ii) hiring new survey crews in order to
obtain the maximum Earnout at the anniversary of the Closing Date as
described in Section 1.04(c) hereof. Further, so long as Shareholder
continues to operate the business in accordance with OMNI's past practices
in maintaining its survey crews and hiring new survey crews, OMNI agrees to
support and not to interfere in any way with Shareholder's efforts in these
regards.
SECTION 1.5 DELIVERY AND EXCHANGE OF CERTIFICATES . On the Closing
Date, the Shareholder shall deliver to OMNI all certificates representing
outstanding shares of Eagle Common Stock. Upon such delivery, OMNI shall
deliver to the Shareholder a check for ONE MILLION EIGHTY THOUSAND AND
NO/100 DOLLARS ($1,080,000), and within five (5) days after the Closing
Date, OMNI shall deliver to Shareholder a certificate representing 53,039
shares of OMNI Common Stock. Until so delivered, each certificate which
represented shares of Eagle Common Stock before the Effective Time shall be
deemed for all purposes to represent the right to receive the Merger
Consideration. OMNI may, at its option, refuse to pay any dividend or
other distribution payable after the Effective Time with respect to OMNI
Common Stock to the holder of certificates evidencing undelivered shares of
Eagle Common Stock. Whether or not a stock certificate represents shares
of Eagle Common Stock is delivered as provided herein, from and after the
Effective Time, such certificates shall under no circumstances evidence,
represent or otherwise constitute a share or other interest in Eagle or any
person, firm or corporation other than OMNI.
ARTICLE 2
EVENTS OCCURRING ON THE CLOSING DATE
SECTION 2.1 EAGLE'S AND SHAREHOLDER'S DELIVERIES. At the Closing,
Shareholder shall deliver to OMNI the following items:
(2) certificates representing all of the outstanding shares of
Eagle Common Stock;
(2) certified resolutions of Board of Directors of Eagle and
Shareholder approving the Merger and the other transactions
contemplated by this Agreement and all related agreements to
which Eagle is a party;
(2) letters of resignation of the members of Eagle's board of
directors and Eagle's officers as of the Closing Date;
(2) a certificate of good standing for Eagle issued by Secretary
of State of Texas as of a date within seven (7) days of the
Closing Date;
(2) articles of incorporation of Eagle, certified by the
Secretary of State of Texas, and bylaws of Eagle, certified
by its Secretary, as of a date within five (5) days of the
Closing Date; and
(f) evidence of the exchange of stock of Eagle and Eagle
Surveys, Ltd., and release by Xx. Xxxxx X. Xxxxx of any
claim or right to Eagle, the Merger Consideration and such
other matters, all in form and substance acceptable to OMNI
and its counsel in their sole discretion.
SECTION 2.2 OMNI'S DELIVERIES.
(2) At the Closing OMNI shall deliver to Shareholder a check
made payable to the account of Shareholder in the amount of
ONE MILLION EIGHTY THOUSAND AND NO/100 DOLLARS
($1,080,000.00); and
(2) Within five (5) days after the Closing Date, OMNI shall
deliver to Shareholder a certificate in the name of
Shareholder and bearing the legend set forth in Section
3.24(d) representing 53,039 shares of OMNI Common Stock.
SECTION 2.3 DELIVERY OF DOCUMENTS BY ALL PARTIES. At the Closing, all
parties to this Agreement shall execute and deliver the following
documents:
(2) An Employment Agreement between Shareholder and OMNI, which
shall be substantially in the form attached hereto as
EXHIBIT "B".
(b) The Articles and the Certificate of Merger in the form
attached as "EXHIBIT A".
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
The Shareholder hereby represents and warrants to OMNI that:
SECTION 3.1 CORPORATE EXISTENCE. Eagle is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Texas. Eagle has all requisite corporate power to carry on the
Business, as currently conducted, and to own and operate its assets and
properties, and is duly qualified to transact business and is in good
standing in each jurisdiction where the ownership of its assets and
properties or the conduct of the Business requires such qualification.
SECTION 3.2 CORPORATE POWER AND AUTHORITY. Eagle has the requisite
corporate power and authority to enter into this Agreement and consummate
the transactions contemplated hereby. All corporate action necessary to
authorize the execution, delivery and performance of this Agreement by
Eagle has been duly taken and this Agreement has been duly executed and
delivered by Eagle. This Agreement is a good, valid and binding obligation
of Eagle and Shareholder, enforceable against Eagle and Shareholder in
accordance with its terms (except as limited by bankruptcy and insolvency
laws and by other laws affecting the rights of creditors generally).
SECTION 3.3 NO CONFLICT. The execution and delivery of this Agreement
by Eagle and Shareholder, the compliance by Eagle and Shareholder with the
terms and conditions hereof and the consummation by Eagle and Shareholder
of the transactions contemplated hereby will not (a) result in or
constitute a default, breach, or violation of any of the terms, conditions
or provisions of the Articles of Incorporation or Bylaws of Eagle, (b)
violate any provision of, any judicial, administrative or arbitration
order, award, judgment, writ, injunction or decree applicable to Eagle or
Shareholder, or any governmental permit or license issued to Eagle, or (c)
conflict with, result in a breach of, constitute a default or event of
default (whether by notice or the lapse of time or both) under or
accelerate or permit the acceleration of the performance required by Eagle,
under any material indenture, mortgage, lien, agreement or instrument to
which Eagle is a party or by which Eagle or any of its assets or properties
may be bound.
SECTION 3.4 CAPITALIZATION AND OWNERSHIP. The authorized capital
stock of Eagle consists of 1,000,000 shares of common stock, no par value
per share, of which 100 shares are issued and outstanding. All of the
issued and outstanding shares of such common stock have been duly
authorized and are validly issued fully paid and non-assessable. There are
no outstanding warrants, options, rights, calls or other commitments,
claims or interests of any nature relating to any share of capital stock of
Eagle, and there are no outstanding securities or debt obligations of Eagle
convertible into shares of capital stock of Eagle. Other than the shares
of Eagle Common Stock owned by Shareholder, there are no shares of Eagle
capital stock outstanding. No person, other than the Shareholder, has any
right, call, claim or interest of any nature relating to the Merger
Consideration. Eagle has no subsidiaries and does not own or control
directly or indirectly, any equity or ownership interest in any other
entity.
SECTION 3.5 CORPORATE RECORDS. Correct and complete copies of Eagle's
articles of incorporation (and all amendments thereto) and bylaws as
amended and in effect as of the date hereof, have been delivered to OMNI.
Eagle's minute books, copies of which have been made available to OMNI
contain accurate minutes of all formally noticed meetings of, and written
consents to all actions taken without meetings by, the board of directors
(and any committees thereof) and shareholders of Eagle since its formation.
SECTION 3.6 INSURANCE. Eagle has heretofore made available for
inspection by OMNI a true and complete copy of all policies of fire,
liability, workers' compensation, and other forms of insurance owned or
held by Eagle. All such policies are in full force and effect, all
premiums with respect thereto covering all periods up to and including the
Closing Date have been paid, and no notice of cancellation or termination
has been received with respect to any such policy.
SECTION 3.7 INFORMATION. The Shareholder acknowledges that (a) he has
received and has reviewed to his satisfaction this Agreement and such
additional material information with respect to the Merger and OMNI, if
any, as he has requested and (b) such information is sufficient for him to
determine objectively whether to approve the Merger and enter into this
Agreement.
SECTION 3.8 CONSENTS. No authorization, consent, approval, permit or
license of or filing with any governmental or public body or authority, any
lender or lessor or any other person or entity is required to authorize the
execution, delivery and performance of this Agreement on the part of
Shareholder or Eagle, other than those which have been obtained.
SECTION 3.9 FINANCIAL STATEMENTS. Eagle has heretofore delivered to
OMNI its balance sheets as of December 31, 1997 (the "BALANCE SHEET") and
March 31, 1998 and the related statement of operations for the year and
period then ended, together with its balance sheets as of December 31, 1996
and March 31, 1997 and the related statement of operations for the year and
period then ended. The financial statements referred to in the preceding
sentence are hereinafter collectively referred to as the "Financial
Statements." Each of the Financial Statements was prepared from the books
and records of Eagle in conformity with generally accepted accounting
principles consistently applied, and fairly present the financial condition
and results of operations of Eagle for the periods and as of the dates
stated therein. Except to the extent reflected in the Financial
Statements, Eagle has no liabilities or obligations required to be
reflected in the Financial Statements (or the notes thereto) in accordance
with generally accepted accounting principles other than current
liabilities incurred in the ordinary course of business, consistent with
past practice subsequent to March 31, 1998.
SECTION 3.10 TITLE TO ASSETS; LIENS. Eagle has good and indefeasible
title to all assets and properties that it purports to own in each case
subject to no security interest, pledge, lien, lease, encumbrance or charge
other than: (a) liens for taxes not yet due and payable, (b) liens that
secure debt that is reflected on Eagle's Financial Statements, and (c)
servitudes, easements, encroachments, rights-of-way, restrictions,
covenants, and similar encumbrances which do not affect the current use of
such assets. The assets and properties owned or leased by Eagle are the
only assets necessary for the conduct of the business of Eagle, as
presently conducted.
SECTION 3.11 LEASES AND IMMOVABLE PROPERTY. Attached hereto as
SCHEDULE 3.11 is a list of each lease pursuant to which Eagle is the lessee
with respect to each parcel of immovable property leased by it
(collectively, "LEASED PROPERTY"). Eagle possesses and occupies all of the
Leased Property. Eagle does not own any immovable property. All
improvements (including all buildings, or portions thereof, and all
fixtures) on any of the Leased Property are in good repair and operating
condition, normal wear and tear and required maintenance (which has
heretofore been regularly performed) excepted, and are suitable and fit for
the purposes for which they are currently being used. The use and
occupation of the Leased Property and the improvements thereon by Eagle
comply in all material respects with all legal requirements, zoning
regulations and building codes.
SECTION 3.12 CONTRACTS. (a) SCHEDULE 3.12 describes all contracts or
commitments of Eagle and/or Shareholder that are material to the operation
of the Business or the ownership, use or operation of Eagle's assets and
properties (including without limitation, mortgages, indentures, loan
agreements, long-term supply contracts and open contracts).
SECTION 3.13 RECEIVABLES; PAYABLES.
(a) All accounts and notes receivable accrued in connection with the
operation of the Business as of the Effective Date, including their
respective balances and an accurate aging thereof are shown on Eagle's
Financial Statements. (Such notes and receivables are referred to
collectively as "RECEIVABLES"). The Receivables have been earned and
recorded in the ordinary course of business consistent with past practices,
and no Receivables are subject to any counterclaim or offset. None of the
Receivables have been sold, transferred, or otherwise disposed of by Eagle
and are fully collectible. Other than those Receivables shown on its
Financial Statements, there are no accounts or notes receivable by Eagle
which either individually or in the aggregate are material to the Business.
(b) All accounts and trade payables of the Business as of the
Effective Date, including the dollar amounts thereof are shown on Eagle's
Financial Statements (such accounts and trade payables being referred to as
"ACCOUNTS PAYABLE"). All such payables of Eagle have arisen in the
ordinary course of business, and no such payables are more than 45 days
past due, except for those account or trade payables with respect to which
there is an amount disputed in good faith and which are marked "Disputed"
on its Financial Statements. All Accounts Payable are accurately reflected
in the Financial Statements. Other than those Accounts Payable set forth
on its Financial Statement, there are no accounts or trade payables by
Eagle which either individually or in the aggregate are material to the
Business.
SECTION 3.14 EMPLOYEE MATTERS. None of the employees of Eagle is a
member of or represented by any labor union; Eagle nor any of its employees
are subject to any collective bargaining agreement; no petition for
certification or union election is pending with respect to any of Eagle's
employees; and, to Shareholder's knowledge, there are no attempts of any
kind being made to organize any of such employees.
SECTION 3.15 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December 31,
1997, Eagle has conducted the Business only in the ordinary course and
there has been no material adverse changes in the business, operations or
financial condition of Eagle or to its assets, except as expressly
contemplated by this Agreement. Since March 31, 1997, Eagle has not:
(3) made any change in its authorized capital or outstanding
securities or redeemed, purchased or otherwise acquired, or agreed to
redeem, purchase or otherwise acquire, or issued, sold or delivered, or
agreed to issue, sell or deliver, any capital stock or other securities
(whether authorized and unissued or held in the treasury) or rights to
acquire such capital stock or other securities, except changes affecting
the Shareholder's acquisition of all capital stock of Eagle not owned by
him on March 31, 1997;
(3) declared or made, or agreed to declare or make, any payment
of dividends or distributions of any assets of any kind whatsoever in
respect of its capital stock;
(3) borrowed or agreed to borrow any funds or incurred; or
become subject to any obligation or liability (absolute or contingent)
except obligations and liabilities incurred in the ordinary course of
business consistent with past practices;
(3) paid any obligation or liability (absolute or contingent)
other than current liabilities then due and owing and paid in the ordinary
course of business;
(3) except as occurred in the ordinary course of business and
consistent with the past practices of Eagle sold, transferred or otherwise
disposed of, or agreed to sell, transfer or otherwise dispose of, or
acquired, or agreed to acquire, any assets, properties or rights;
(3) mortgaged, pledged or otherwise subjected, or agreed to
mortgage, pledge or otherwise subject, any of its assets to any lien,
charge or other encumbrance, or agreed to do so;
(3) entered or agreed to enter into any agreement or arrangement
granting any preferential rights to purchase any of its assets, properties
or rights (including management and control thereof), or requiring the
consent of any party to the transfer and assignment of any of such assets,
properties or rights (including management and control thereof);
(3) written up or written down the carrying value of any of its
assets;
(3) changed the job costing system or depreciation methods of
accounting for its assets;
(3) other than in the ordinary course of business, made or
permitted any amendment or termination of any contract, agreement or
license to which it is a party or by which it or its assets or properties
are subject, or forgiven or canceled any debts or claims or released or
waived any rights or claims;
(3) entered into any employment, compensation or consulting
agreement that is not terminable by Eagle, at will at any time, or
collective bargaining agreement with any person or group, or modified or
amended the terms of any such existing agreement;
(3) other than in the ordinary course of business, increased or
agreed to increase the rate of compensation payable to become payable by
Eagle or to any of its officers, directors or employees or adopted any new,
or made any amendment in any existing, profit sharing, bonus, deferred
compensation, savings, insurance, pension, retirement or other employee
benefit plan;
(3) experienced any labor trouble or lost or terminated any key
employees, or material customers or suppliers;
(3) received any citation for any violations of any material
legal requirement including, without limitation, the Federal Occupational
Safety and Health Act of 1970 or any rules or regulations promulgated
thereunder;
(3) suffered any material adverse change in its financial
condition, prospects, assets, liability or business or suffered any
material damages, destruction or losses (whether or not covered by
insurance); or
(3) entered into any other commitment or transaction or
experienced any other event that has materially and adversely affected, or
is likely to materially and adversely affect, the business, operations,
prospects, assets, liabilities or financial condition of Eagle.
SECTION 3.16 PATENTS, TRADEMARKS, AND SIMILAR RIGHTS.
(a) (i) Eagle has the sole and exclusive right to use all patents,
copyrights, trademarks, trade names, technology, know-how, processes, trade
secrets, inventions, proprietary data, formulae, research and development
data, computer software programs, and other intangible property, and any
applications for the same, owned by Eagle or the Shareholder and used in
the Business, and all goodwill associated with such intangible property
(collectively, the "INTANGIBLE PROPERTY"), and the consummation of the
transactions contemplated by this Agreement will not alter or impair any
such rights;
(ii) Eagle has the right to use all Intangible Property which is
currently used by Eagle in connection with the Business either as provided
in clause (i) above or as licensed or authorized by others, and the
consummation of the transactions contemplated by this Agreement will not
alter or impair any such rights;
(iii) No claims have been asserted by any person or entity for
the use of any such Intangible Property or challenging or questioning the
validity or effectiveness of any such license or agreement, and the
Shareholder has no knowledge of any valid basis for any such claim;
(iv) The use of such Intangible Property by Eagle does not
infringe on the rights of any person or entity and no proceedings have been
instituted, are pending, or threatened that challenge the rights of Eagle
in respect thereof; and
(v) None of Eagle's Intangible Property rights, to the best of
the Shareholder's knowledge, are being infringed by the products,
activities, operations, trade names, trademarks, service marks, trade dress
rights or copyrights of any other person or persons and none are subject to
any outstanding order, judgment, decree, stipulation or agreement
restricting the use thereof.
SECTION 3.17 COMPLIANCE WITH LAWS; LICENSES AND PERMITS. Eagle is in
compliance, in all material respects, with all applicable laws,
regulations, orders, judgments, ordinances or decrees of any federal, state
or local court or any governmental authority. Eagle has not received any
notices or orders, nor to its knowledge have any notices or orders been
issued, relating to any violation by Eagle of any law, ordinance,
regulation or requirement that would have a material adverse effect on the
Business or the ownership, use or operation of its assets and properties.
SECTION 3.18 RELATIONSHIP WITH SUPPLIERS AND CUSTOMERS. Eagle has not
received notice of any intention to terminate or materially modify any
relationship with its suppliers or customers.
SECTION 3.19 TAXES. All foreign, federal, state, parish and local tax
returns and reports required to be filed by Eagle in connection with the
operations of the Business or the ownership, use or operation of its assets
and properties have been filed within the time period and in the manner
prescribed by law. All such returns and reports filed for the five
preceding calendar years reflect accurately all liability for taxes
required to be paid in connection with the operations of the Business or
the ownership, use or operation of Eagle's assets and properties for the
periods covered thereby. All taxes and assessments (including interest and
penalties) owed in connection with the operations of the Business or the
ownership, use or operation of Eagle's assets and properties have been paid
in full or appropriate provision for payment has been made through the date
hereof, including all estimated corporate income tax payments due and
payable through the date hereof. Neither Shareholder nor Eagle currently
has any outstanding tax liability under the law of any jurisdiction that
would subject OMNI or Eagle's assets and properties to the liability or
withholding requirements of such jurisdiction's law. There is no pending
examination or proceeding by any authority or agency with respect to the
Business or use, operation or ownership of Eagle's assets and properties
relating to the assessment or collection of any taxes.
SECTION 3.20 ERISA. Eagle has never maintained or become obligated to
contribute to any plan or arrangement as defined in Section 3.3 of ERISA,
that (a) is subject to Title IV of ERISA, (b) is maintained, administered
or contributed to by Eagle and (c) covers any employee or former employee
of Eagle. Eagle has not within the last five years engaged in, nor is
Eagle a successor to an entity that has engaged in, a transaction described
in Section 4069 of ERISA.
SECTION 3.21 LEGAL PROCEEDINGS. There are no actions, suits, or
proceedings pending, or threatened investigations, against or affecting
Eagle or Shareholder, or the use, ownership or operation of the Eagle's
assets or properties, or the Business at law or in equity, by or before any
governmental authority, which action, suit, investigation or proceeding, if
resolved against Eagle or Shareholder is reasonably likely to have a
material adverse effect on the use, ownership or operation of its assets or
properties, the Business, including (i) unfair labor practice charges or
complaints alleging violations of the National Labor Relations Act or any
similar state law or regulation, (ii) charges of discrimination before the
Equal Employment Opportunity Commission or any state or local government
agency responsible for the enforcement of state or local anti-
discrimination laws, (iii) claims before the United States Department of
Labor or before any local government agency responsible for the enforcement
of similar state or local laws alleging violations of the Fair Labor
Standards Act or any state or local laws covering such matters, and (iv)
claims before the United States Department of Labor or any other federal
agency or before any state or local government agency responsible for the
enforcement of state or local laws alleging violations of any occupational
safety and health laws, or Environmental Laws (as defined in Section 3.22
hereof) or any state or local law covering such matters. There are no
outstanding unsatisfied judgments, decrees, consent orders or other orders
of any governmental authority against or affecting the use, ownership or
operation of its assets or properties, or the Business. No action or
proceeding has been instituted or threatened against Eagle or Shareholder
before any governmental authority by any Person seeking to restrain or
prohibit the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby or thereby.
SECTION 3.22 ENVIRONMENTAL.
(3) "Environmental Laws" means any federal, state, local or
foreign environmental law, ordinance, criterion guideline or regulation,
which include but are not limited to: (i) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601-
9675, as amended by the Superfund Amendments and Reauthorization Act of
1986; (ii) the Federal Insecticide, Fungicide, and Rodenticide Act, as
amended; (iii) the Resource Conservation and Recovery Act, as amended; (iv)
the Toxic Substances Control Act, as amended; (v) the Hazardous Material
Transportation and Uniform Safety Act; (vi) the Clean Air Act, as amended;
(vii) the Federal Water Pollution Control Act, as amended; (viii) the Oil
Pollution Act of 1990, as amended and (ix) the Louisiana Environmental
Quality Act. "Hazardous substances," "hazardous wastes," and "toxic
substances" includes materials defined as "hazardous substances,"
"extremely hazardous substances," "hazardous wastes," "hazardous
constituents," "hazardous materials," "petroleum," "chemical substances,"
"pollutants," "contaminants," "solid waste" or "toxic substances" in the
Environmental Laws.
(3) Eagle has (i) obtained all necessary licenses, permits and
other authorizations and approvals required under the Environmental Laws,
and (ii) complied with all Environmental Laws concerning (x) emissions,
discharges, releases or threatened release of toxic or hazardous substances
or wastes into the environment; (y) generation, use, collection, treatment,
storage, transportation, recover, removal, discharge, disposal or handling
of toxic or hazardous substances or wastes; and (z) record-keeping,
maintenance, testing, inspection, notification and reporting requirements
with respect to toxic or hazardous substances or wastes. Eagle has not
filed any notice under any Environmental Law indicating past or present on-
site treatment, storage or disposal of toxic or hazardous substances or
wastes or reporting a spill or release of toxic or hazardous substances or
wastes into the environment.
(3) Eagle is not, nor has it been, subject to any civil,
criminal or administrative action, suit, demand, claim, hearing, notice or
demand letter, notice of violation, investigation, nor is any such action,
proceeding pending or threatened against Eagle pursuant to any
Environmental Law. Eagle has no knowledge of, nor has Eagle received
notice of, any past, present or future events, conditions, circumstances,
activities, practices, incidents, actions or plans which may interfere with
or prevent compliance or continued compliance with any Environmental Law or
which may give rise to any common law or legal liability or otherwise form
the basis of any claim, action, demand, suit, proceeding, hearing, study or
investigation under any Environmental Law. There are no facts or
circumstances that would form the basis of a claim, citation or allegation
against Eagle for a violation of, or alleging liability under, any
Environmental Law.
(3) There are not, and have not been, any underground tanks of
any type (including tanks storing gasoline, diesel fuel, oil or other
petroleum products) or disposal sites for toxic or hazardous substances or
wastes located on or under any of the real property owned or operated by
Eagle.
(3) Eagle has not, nor has any person engaged by Eagle, treated,
used, generated or manufactured any hazardous substances or wastes. Eagle
has not engaged any person to handle, transport, treat store or dispose of
hazardous substances or wastes on its behalf, and disposal transportation,
treating, storage or handling by the Eagle of hazardous substances and
wastes has been in compliance with all Environmental Laws.
SECTION 3.23 DISCLOSURE AND RELIANCE. None of the information,
documents, certificates or instruments furnished by Eagle to OMNI or any of
its representatives in connection with this Agreement are false or
misleading in any material respect or contain any material misstatement of
fact or omit to state any material facts required to be stated to make the
statements therein not misleading.
SECTION 3.24 RESTRICTIONS ON RESALE; INVESTMENT INTENT.
(3) The Shareholder is acquiring the OMNI Common Stock to be
received in connection with the Merger for investment for its own account
and has no present intention of reselling or otherwise distributing or
participating in a distribution of such stock. The Shareholder understands
that the shares of OMNI Common Stock to be issued in the Merger will not be
registered under the Securities Act of 1933, as amended (the "SECURITIES
ACT"), that such shares will be "restricted securities" as that term is
defined in Rule 144 ("RULE 144") promulgated by the Securities and Exchange
Commission (the "COMMISSION") under the Securities Act, and that the
Shareholder cannot transfer any of such shares unless they are subsequently
registered under the Securities Act and under any applicable state
securities law or are transferred in a transfer that, in the opinion of
counsel satisfactory to OMNI, is exempt from such registration. Each
Shareholder further understands that OMNI is not obligated by this
Agreement to register such shares under the Securities Act or under any
such state laws and that OMNI will, as a condition to the transfer of any
such shares, require that the request for transfer be accompanied by an
opinion of counsel, in form and substance satisfactory to OMNI, to the
effect that the proposed transfer does not result in a violation of the
Securities Act or any applicable state securities law, unless such transfer
is covered by an effective registration statement. The Shareholder
understands that such shares of OMNI Common Stock may not be sold publicly
in reliance on the exemption from registration under the Securities Act
afforded by Rule 144 unless and until the minimum holding period and other
requirements of Rule 144 have been satisfied.
(3) The Shareholder has been represented by competent and
experienced legal counsel in connection with the negotiation and execution
of this Agreement, has been granted the opportunity to make a thorough
investigation of and to obtain information with respect to the affairs of
OMNI and his acquisition of OMNI Common Stock, and has availed himself of
such opportunity either directly or through its legal counsel and other
authorized representatives.
(3) The Shareholder has been advised that the shares of OMNI
Common Stock issued hereunder have not been and are not being registered
under the Securities Act and that OMNI in issuing such shares is relying
upon, among other things, the representations and warranties of the
Shareholder contained in this Section in concluding that such issuance does
not require compliance with the registration provisions of the Securities
Act.
(3) The Shareholder understands and agrees that all certificates
evidencing the shares of OMNI Common Stock issued hereunder will bear
restrictive legends in substantially the following form:
The securities represented by this
certificate have not been registered under
the Securities Act of 1933, as amended (the
"Act"), or any applicable state law, and may
not be transferred without registration under
the Act and any such state law or an opinion
of counsel satisfactory to the corporation
that registration is not required.
SECTION 3.25 NO UNDISCLOSED MATERIAL LIABILITIES. There are no
liabilities, commitments, debts, obligations or claims of any kind
whatsoever, whether absolute, accrued, fixed, contingent, known, unknown,
matured, unmatured or otherwise, against Eagle or any Subsidiary and there
is no condition, situation or set of circumstances which could reasonably
be expected to result in such a liability, except:
(a) as and to the extent reflected or reserved against in the
Financial Statements;
(b) specifically described and identified as an exception to this
section in any of the Schedules delivered to OMNI pursuant to this
Agreement;
(c) incurred since March 31, 1998, in the ordinary course of business
consistent with prior practice and Section 3.15 hereof; or
(d) open purchase or sales orders or agreements for the delivery of
services in the ordinary course of business consistent with prior practice.
SECTION 3.26 INTERESTS IN CLIENTS, SUPPLIERS, ETC. Except as
contemplated in Section 6.04, no officer, director or stockholder of the
Company or any of its Subsidiaries possesses, directly or indirectly, any
financial interest in, or is a director, officer or employee of, any
corporation, firm, association or business organization that is a supplier,
customer, lessor, lessee, or competitor or potential competitor of the
Company or any of its Subsidiaries. Ownership by all or any of such
persons of less than 10% of any class of securities of a company shall not
be deemed to be a financial interest for purposes of this Section 3.26.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF OMNI
OMNI represents and warrants to Shareholder that:
SECTION 4.1 CORPORATE EXISTENCE. OMNI is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Louisiana with full corporate power to carry on its business as now being
conducted and is duly qualified to transact business and is in good
standing in each jurisdiction where the ownership of its assets and
properties or the conduct of its business requires such qualification and
the failure to be so qualified would have a material adverse effect on
OMNI.
SECTION 4.2 CORPORATE POWER AND AUTHORITY. OMNI has the requisite
corporate power and authority to enter into this Agreement and consummate
the transactions contemplated hereby. All corporate action necessary to
authorize the execution, delivery and performance of this Agreement by OMNI
has been taken, or, prior to Closing, will have been taken, and this
Agreement has been duly executed and delivered by OMNI. This Agreement is
a legal, valid and binding obligation of OMNI, enforceable against OMNI in
accordance with its terms (except as limited by bankruptcy and insolvency
laws and by other laws affecting the rights of creditors generally).
SECTION 4.3 ABSENCE OF BREACH. The execution and delivery of this
Agreement by OMNI, the compliance by OMNI with the terms and conditions
hereof and the consummation by OMNI of the transactions contemplated hereby
will not (a) result in or constitute a default, breach, or violation of any
of the terms, conditions or provisions of the Articles of Incorporation or
Bylaws of OMNI, (b) to OMNI's knowledge, violate any provision of, any
judicial, administrative or arbitration order, award, judgment, writ,
injunction or decree applicable to, or any governmental permit or license
issued to, OMNI, or (c) conflict with, result in a breach of, constitute a
default or event of default (whether by notice or the lapse of time or
both) under or accelerate or permit the acceleration of the performance
required by, any material indenture, mortgage, lien, lease, agreement or
instrument to which OMNI is a party or by which OMNI may be bound.
SECTION 4.4 CONSENTS. No authorization, consent, approval, permit or
license of or filing with any governmental or public body or authority, any
lender or lessor or any other person or entity is required to authorize the
execution, delivery and performance of this Agreement on the part of OMNI.
SECTION 4.5 HOUSTON AREA OFFICE. OMNI agrees to maintain a Houston
area office for survey operations, for at least one year from the Closing
Date, to support Shareholder's effort to reach the maximum Earnout under
the terms of this Agreement.
ARTICLE 5
LIABILITY AND INDEMNIFICATION
SECTION 5.1 NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties contained in Articles 3 and 4 of this
Agreement shall survive the Closing Date. The liability of any party to
indemnify any other party pursuant to this Article 5 shall be limited to
claims as to which notice has been given to the indemnifying party on or
prior to the second anniversary of the Closing Date, whether or not any
damages have been actually been sustained as of such date.
SECTION 5.2 INDEMNIFICATION BY THE SHAREHOLDER. The Shareholder binds
himself to protect, indemnify and hold harmless OMNI and its respective
shareholders, officers, directors, agents, attorneys and affiliated
parties, and their respective legal representatives, successors and
assigns, from and against any demand, claim, action, cause of action, suit,
proceeding, investigation, liability, obligation, judgment, loss, damage,
cost or expense (including, without limitation, reasonable attorneys' fees)
as they are incurred or suffered by any of them and caused by or arising
out of:
(5) any breach or default in the performance by Shareholder of
any covenant or agreement of the Shareholder contained in this Agreement,
or any agreement attached hereto as an exhibit;
(5) any breach of any representation or warranty made by
Shareholder in Article 3 of this Agreement, or in any agreement attached
hereto as an exhibit;
(c) any claim, right, call or interest of any person or entity,
other than the Shareholder, in or to the capital stock of Eagle, or any
derivative thereof, or the Merger Consideration; or
(d) any and all actions, suits, proceedings, claims, demands,
judgments, costs and expenses (including reasonable legal and accounting
fees) incident to any of the foregoing.
SECTION 5.3 INDEMNIFICATION BY OMNI. OMNI binds itself to protect,
indemnify and hold harmless the Shareholder and his respective heirs,
beneficiaries, legal representatives, successors, assigns and affiliated
persons, from and against any demand, claim, action, cause of action, suit,
proceeding, investigation, liability, obligation, judgment, loss, damage,
cost or expense (including, without limitation, reasonable attorneys' fees)
as they are incurred or suffered by any such indemnified person and caused
by or arising out of:
(5) any breach or default in the performance by OMNI of any
covenant or agreement of OMNI contained in this Agreement, or any agreement
attached hereto as an exhibit;
(5) any breach of any representation or warranty made by OMNI in
Article 4 of this Agreement or any agreement attached hereto as an exhibit;
(5) any and all actions, suits, proceedings, claims, demands,
judgments, costs and expenses (including reasonable legal and accounting
fees) incident to any of the foregoing; or
(d) any failure by OMNI to timely perform any obligation of
Eagle for which Shareholder is personally liable or which Shareholder has
personally guaranteed in connection with the obligations of the Business
and listed on Schedule 6.08.
SECTION 5.4 CONDITIONS OF INDEMNIFICATION. The obligations and
liabilities of Shareholder or OMNI (for purposes of this Section 5.04, the
"INDEMNIFYING PARTIES") to protect, indemnify and hold harmless any other
party (the "INDEMNIFIED PARTY") under Sections 5.02 or 5.03 hereof with
respect to claims asserted by third parties shall be subject to the
following terms and conditions:
(5) promptly after receipt of notice of commencement of any
action evidenced by service of process or other legal pleading, or the
assertion in writing of any claim by a third party, the Indemnified Party
shall give to the Indemnifying Party, written notice thereof together with
a copy of such claim, process, or other legal pleading, and the
Indemnifying Party shall have the right to undertake the defense thereof by
representatives of its choosing (subject to the right of the Indemnified
Party to consent reasonably thereto) and at its expense; provided, however,
that the Indemnified Party may participate in the defense with counsel of
its own choice and at its expense. The failure to give the preceding
notice shall not operate as a waiver of any indemnification rights
hereunder so long as the Indemnifying Party is not prejudiced as a result
thereof, and the Indemnifying Party may undertake the defense in accordance
with the foregoing as soon as it learns of the third party claim even
though it may learn of such claims through some other means.
(5) in the event that the Indemnifying Party, by the 30th day
after receipt of notice (as set forth above) of any such claim (or, if
earlier, by the 10th day preceding the day on which an answer or other
pleading must be served in order to prevent judgment by default in favor of
the person asserting such claim), does not elect to defend against such
claim, the Indemnified Party shall have the right, but not the obligation,
to undertake the defense, compromise or settlement of such claim on behalf
of and for the account and risk of the Indemnifying Party's expense,
subject to the right of the Indemnifying Party to assume the defense of
such claims at any time prior to settlement, compromise or final
determination thereof.
(5) anything in this Section 5.04 to the contrary
notwithstanding, the Indemnifying Party shall not settle any claim without
the consent of the Indemnified Party unless such settlement involves only
the payment of money and does not involve any admission of liability or
stipulation of fact which the Indemnified Party believes in its sole
discretion may have an adverse effect on it and, if OMNI is the Indemnified
Party, on Eagle, and the claimant provides to the Indemnified Party a
release from all liability in respect of such claim. If the settlement of
the claim involves more than the payment of money or involves an admission
of liability or stipulation of fact, the Indemnifying Party shall not
settle the claim without the prior written consent of the Indemnified
Party.
(5) the Indemnified Party and the Indemnifying Party will each
cooperate with all reasonable requests of the other with respect to any
indemnified claim.
ARTICLE 6
MISCELLANEOUS
SECTION 6.1 NOTICES. Any notice or communication required or
permitted hereunder shall be given in writing, sent by (a) personal
delivery, (b) expedited delivery service with proof of delivery, (c)
registered or certified United States mail, postage prepaid or (d) fax
addressed to the appropriate party as follows:
TO THE SHAREHOLDER: Eagle Surveys International, Inc.
00000 X.X. 000, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
WITH A COPY TO: Xxx X. Xxxxxxxx P.C.
0000 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxx
Fax: (000) 000-0000
TO THE PURCHASER: OMNI Energy Services Corp.
0000 Xxxxx Xxxx Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
WITH A COPY TO: Jones, Walker, Waechter,
Poitevent, Carrre & Xxxxxx
000 Xx. Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: W. Xxxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
or to such other address or to the attention of such other individual as
hereafter shall be designated in writing by the applicable party sent in
accordance herewith. Any such notice or communication shall be deemed to
have been given either at the time of personal delivery or, in the case of
delivery service or mail, as of the date of first attempted delivery at the
address and in the manner provided herein, or in the case of fax upon
confirmation of receipt.
SECTION 6.2 FURTHER ASSURANCES. The parties hereto agree (i) to
furnish upon request to each other such further information, (ii) to
execute and deliver to each other such other documents, (iii) to provide to
each other or each other's officers, counsel, independent accountants or
other representatives or agents reasonable access during normal business
hours to the books, records and other information relating to the Eagle
that is within their possession for the purpose of allowing the completion
of tax returns, financial statements or other reasonable business or
financial purposes and (iv) to do such other acts and things, all as the
other party hereto may at any time reasonably request for the purpose of
consummating the transactions contemplated by and carrying out the intent
of this Agreement and any other documents referred to herein.
SECTION 6.3 COSTS AND EXPENSES. Unless otherwise provided herein,
each party shall pay its own respective costs and expenses (including,
without limitation, the fees, disbursements and expenses of its attorneys,
accountants and advisors) in connection with the negotiation, preparation
and execution of this Agreement and the consummation of the transactions
contemplated thereby.
SECTION 6.4 PURCHASE OF SUPPLIES. (a) Following the Effective Time
and during the term of the Employment and Non-Compete Agreement between
OMNI and Shareholder, Shareholder shall be free to cause OMNI's Texas
office to purchase supplies and equipment necessary and appropriate to the
operation of the business (the "PURCHASE ITEMS") from Houston Survey
Supplies, Inc., a Texas corporation wholly owned and operated by
Shareholder ("HOUSTON"), provided that the price charged to OMNI by Houston
is an amount less than or equal to Houston's direct cost for each such
Purchase Item plus seventeen percent (17%) plus Houston's direct, out-of-
pocket freight cost for such Purchased Items.
(b) Following the Effective time, OMNI shall have complete access
during normal business hours to all books, records and documents of every
kind and character of Houston for purposes of verifying compliance with the
terms of this Section 6.04. Shareholder shall cause Houston to make such
books, records and documents available to OMNI at Houston's offices in
Houston, Texas for examination and reproduction by OMNI's authorized
representatives and to cause its personnel to assist OMNI in making such
investigations. During such investigations, OMNI shall have the right to
make copies of such records, files and other materials as it may reasonably
deem advisable.
In the event of a breach of this Section 6.04, in addition to all
other remedies available to OMNI, Section 6.04(a) shall terminate and be of
no further force and effect.
SECTION 6.5 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the substantive laws and not the choice of law
rules of the State of Louisiana.
SECTION 6.6 ARBITRATION. (a) Any and all disputes, controversies,
and conflicts that arise from or in relation to, or that involve the
breach, existence, validity, and termination of, this Agreement shall, to
the extent possible, be settled amicably by the Parties. In the event of a
failure to make amicable settlement of any dispute hereunder, such dispute
shall be finally settled through arbitration, in Lafayette, Louisiana,
before an arbitration panel under the Rules of the American Arbitration
Association ("AAA") in effect as of the date hereof. In rendering any
decision or award, the arbitration panel shall determine the rights and
obligations of the Parties in accordance with the laws of the State of
Louisiana and the United States of America.
SECTION 6.7 REPRESENTATIONS AND WARRANTIES. (a) The representations
and warranties made herein are made by Shareholder with the knowledge and
expectation that OMNI is placing reliance thereon. To the extent that any
portion of the representations or warranties made herein were made to
Shareholder's knowledge, Shareholder represents that he has made due and
reasonable inquiry with respect thereto.
(b) The representations and warranties made herein are made by OMNI
with the knowledge and expectation that Shareholder is placing reliance
thereon. To the extent that any portion of the representations or
warranties made herein were made to OMNI's knowledge, OMNI represents that
it has made due and reasonable inquiry with respect thereto.
SECTION 6.8 OBLIGATIONS OF SHAREHOLDER MADE ON BEHALF OF EAGLE OMNI
will i) timely perform all obligations of Eagle listed on SCHEDULE 6.08
hereof for which Shareholder is personally liable, and ii) pay in full all
such loans within eight (8) weeks from the Closing Date. Further, OMNI
will fully perform the obligations of Shareholder in connection with (i)
the Commercial Lease between Xxxxxxxxxx Family (Landlord) and Xxxxxxx Xxxx
Xxxxxx (Tenant and Guarantor) as to Eagle's office lease at 00000 Xxxxxxx
Xxxxxxx, Xxxxxxx, Xxxxx, which expires November 30, 2000, and (ii) the
Apartment Lease Contract dated February 25, 1998 between Eagle Surveys and
Xxx Xxxxxx (Tenant) and Xxxxx Crossing (Landlord) as to 0000 Xxxxx Xxxx,
Xxx. 0000, Xxxxxxx, Xxxxx, which expires on August 31, 1998. Also, OMNI
will use its best efforts to have each of the above referenced leases
assigned to OMNI and to have Shareholder's personal guarantees of such
leases released.
SECTION 6.9 ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding of the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and
understandings (whether written or oral) among the parties with respect to
such subject matter.
SECTION 6.10 AMENDMENT. This Agreement may be amended or modified
only by written agreement of all of the parties hereto.
SECTION 6.11 PARTIES IN INTEREST. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors, executors, administrators, personal representatives, heirs and
permitted assigns, and no party hereto may assign its rights or obligations
hereunder without the prior written consent of the other parties hereto.
Nothing in this Agreement is intended or shall be construed to confer upon
or to give any person other than the parties hereto any rights or remedies
under or by reason of this Agreement.
SECTION 6.12 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which will be deemed an original but all of
which together will constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement is executed by the parties, acting
through their respective Presidents, and attested by their respective
secretaries, as of the day and year first above written.
ATTEST: OMNI ENERGY SERVICES CORP.:
/S/ Xxxxx X. Xxxxxxx By: /S/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx Xxxxx X. Xxxxxx
Secretary President
ATTEST: EAGLE SURVEYS INTERNATIONAL, INC.:
/S/ Xxxxxxx X. Xxxxxx By: /S/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxx
Secretary President
CERTIFICATE OF SECRETARY OF
EAGLE SURVEYS INTERNATIONAL, INC.
I hereby certify that I am the duly elected Secretary of Eagle Surveys
International, Inc., a Texas corporation, presently serving in such
capacity, and that the foregoing Agreement and Plan of Merger was, in the
manner required by the Texas Business Corporation Act, duly approved,
without alteration or amendment, by written consent of the sole shareholder
of Eagle Surveys International, Inc. duly certified and executed.
Dated: May 5, 1998
/S/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Secretary
CERTIFICATE OF SECRETARY OF
OMNI ENERGY SERVICES CORP.
I hereby certify that I am the duly elected Secretary of OMNI Energy
Services Corp., a Louisiana corporation, presently serving in such
capacity, and that the foregoing Agreement and Plan of Merger was not
required to be approved by the shareholders of OMNI Energy Services Corp.
pursuant to Section 112E(1) of the Louisiana Business Corporation Law.
Dated: May 5, 1998.
/S/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Secretary
ACKNOWLEDGMENT AS TO EAGLE SURVEYS INTERNATIONAL, INC.
STATE OF LOUISIANA )
)
PARISH OF ORLEANS )
BEFORE ME, the undersigned authority, personally came and appeared
XXXXXXX X. XXXXXX, being duly sworn, declared and acknowledged before me
that he is the President of Eagle Surveys International, Inc., a Texas
corporation, and that in such capacity he was duly authorized to and did
execute the foregoing Agreement and Plan of Merger on behalf of such
Corporation, for the purposes therein expressed, and as his and such
Corporation's free act and deed and that the facts stated therein are true.
Sworn to and subscribed /S/ Xxxxxxx X. Xxxxxx
before me Xxxxxxx X. Xxxxxx
this 5th day of May, President
1998.
/s/Xxxxx Xxxxxxxx
Notary Public
ACKNOWLEDGMENT AS TO OMNI ENERGY SERVICES CORP.
STATE OF LOUISIANA )
)
PARISH OF ORLEANS )
BEFORE ME, the undersigned authority, personally came and appeared
XXXXX X. XXXXXX, who, being duly sworn, declared and acknowledged before me
that he is the President of OMNI Energy Services Corp., a Louisiana
corporation, and that in such capacity he was duly authorized to and did
execute the foregoing Agreement and Plan of Merger on behalf of such
Corporation, for the purposes therein expressed, and as his and such
Corporation's free act and deed and that the facts stated therein are true.
Sworn to and subscribed /S/ Xxxxx X. Xxxxxx
before me Xxxxx X. Xxxxxx
this 5th day of May, President
1998.
/s/ Xxxxx Xxxxxxxx
Notary Public
SCHEDULE 3.11 - LEASED PROPERTY
SCHEDULE 3.12 - CONTRACTS
(1) Term Promissory Note dated 02/24/98 executed by Eagle Surveys
International, Inc., in the principal amount of $90,330 payable to
Chase Bank of Texas, N.A. in monthly installments; secured by General
Security Agreement on All Accounts, All Equipment, All Inventory;
(2) Term Promissory Note dated 11/14/97 executed by Eagle Surveys
International, Inc., in the principal amount of $18,532.50 payable to
Texas Commerce Bank NA (now chase Bank of Texas N.A.) in monthly
installments until 12/01/01; secured by Security Agreement - Equipment
and Fixtures and personal guarantee of Xxxxxxx X. Xxxxxx;
(3) Business Revolving Credit Account Agreement and Promissory Note dated
03/13/98 executed by eagle Surveys International, Inc., in the
principal amount of $150,000 payable to Chase Bank of Texas N.A. in
monthly installments until 03/26/99; secured by General Security
Agreement and personal guarantee;
(4) Loan from Eagle Surveys Ltd., balance due on 4/30/98 of $146,912.75;
(5) Shareholder's Loan payable to Xxxxx Xxxxx, balance due on 04/30/98 of
$12,816.68;
(6) Shareholder's Loan payable to Xxxxxxx X. Xxxxxx, balance due on
04/30/98 of $28,466.59.
(7) Lease with Purchase Option (equipment lease) from Debis, balance due
on 4/30/98 of $36,988.99, secured by security agreement on Posi Track
equipment.
SCHEDULE 6.08 - CONTRACTS
(1) Term Promissory Note dated 02/24/98 executed by Eagle Surveys
International, Inc., in the principal amount of $90,330 payable to
Chase Bank of Texas, N.A. in monthly installments; secured by General
Security Agreement on All Accounts, All Equipment, All Inventory;
(2) Term Promissory Note dated 11/14/97 executed by Eagle Surveys
International, Inc., in the principal amount of $18,532.50 payable to
Texas Commerce Bank NA (now chase Bank of Texas N.A.) in monthly
installments until 12/01/01; secured by Security Agreement - Equipment
and Fixtures and personal guarantee of Xxxxxxx X. Xxxxxx;
(3) Business Revolving Credit Account Agreement and Promissory Note dated
03/13/98 executed by eagle Surveys International, Inc., in the
principal amount of $150,000 payable to Chase Bank of Texas N.A. in
monthly installments until 03/26/99; secured by General Security
Agreement and personal guarantee;
(4) Loan from Eagle Surveys Ltd., balance due on 4/30/98 of $146,912.75;
(5) Shareholder's Loan payable to Xxxxx Xxxxx, balance due on 04/30/98 of
$12,816.68;
(6) Shareholder's Loan payable to Xxxxxxx X. Xxxxxx, balance due on
04/30/98 of $28,466.59.
